Posts Tagged ‘performing arts center’

Can A Union Walk Away With My Contract?

Tuesday, November 29th, 2016

By Brian Taylor Goldstein, Esq.    

Dear Law and Disorder: 

Is it legal that a presenter can put “strike, lock-out or other labor controversy (including, without limitation, the picketing on the theater by representatives of any labor union having or claiming to have jurisdiction over theater’s employees” into a force majeure clause? I mean, it doesn’t seem fair that an artist that is ready, willing and able to perform should be held “hostage” to a theatre who cannot strike a deal with its stagehands, right? I can’t believe this is a commonly accepted practice. Surely, holding out for a better contract (on either side) is a willful action and the responsibility of those parties to solve so they can fulfil their commitment to the artist, yes?

When you ask “is it legal” do you mean “is it a crime?” No. Assuming you’re not taking out a contract on someone’s life, then anything two parties negotiate and agree to in a contract is perfectly “legal”

Is it common? Absolutely, particularly with professional theaters or any large presenters or theaters who have collective bargaining agreements with various performing arts unions—such as most major orchestras and large concert halls and performing arts centers. In fact, I’ve never seen an engagement contract with a major orchestra or presenter that didn’t have such a clause.

It is appropriate? In my mind, yes. If union stagehands or artists make unreasonable demands and walk out, that’s not always the theater’s or orchestra’s fault. On the other hand, compromise on the party of either party is not always a reasonable possibility at the outset. Neither party should be held “hostage” to the threat of a breach of contract to compel one side or the other to agree hastily to an ill-advised collective bargaining agreement. Regardless, a union or labor issue is almost always a force majeure event. I even include that in my own contracts.

Another consideration is that if the artists you represent are themselves a member of a union—such as a musician who is a member of AFM—then, as a union member, they will be prohibited from crossing the picket line regardless of what the engagement contract says. Indeed, I had a group that had been hired to perform with a major orchestra last year and tried the same approach you a posited—they presented themselves at the stage door claiming that they were ready, willing, and able to perform. However, it turned out they were also AFM members and AFM said that they may be ready and willing, but were not “able.”

Is it fair? That depends on how you feel about the role of unions in the performing arts. I will say this: I have seen just as many artists shoot themselves in the foot as I have presenters try to pass off the losses of their own mismanagement and poor business planning onto their artists. And I know from my own experience that artists are not always their own best representatives in the marketplace. Nonetheless, I, for one, have never believed that the Arts are well served by the same “winner take all” approach that one finds in other industries.

Do you have to agree to it? No. You never have to agree to anything you think is unfair or unreasonable. If the issue is important enough to you and your artist, you can always either walk away or try and negotiate something all parties can accept. Just like a union.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Acts of God, Agents, Artist Management, Contracts, Law and Disorder: Performing Arts Division, Unions | Comments Closed

Who’s Responsible For Performance Licenses?

Wednesday, June 26th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: In all of my artist’s booking contracts, the presenters are required to obtain ASCAP, BMI and SESAC licenses. I recently received a contract back from a venue in which they crossed out that language. They told me that their policy is not to get these licenses and that the artist is responsible for obtaining them. It was my understanding that it was always the venue’s or presenter’s responsibility to obtain the performance licenses from ASCAP, BMI, and SESAC. Am I wrong? You’re not wrong, but you’re not entirely correct either. The truth is that it is the legal responsibility of all parties to make sure that the proper licenses have been obtained for a performance. Which party actually obtains them and who bears the costs is a matter for negotiation. Whether it’s a festival, a school, a nightclub, or a large performing arts center, non-profit or for-profit, it’s the legal responsibility of the owner/operator of a performance space/venue to ensure that the necessary rights and licenses have been obtained with respect to all copyrighted music which is performed at that venue. (Actually, this legal responsibility is not limited to performance rights, but extends to dramatic rights, synchronization rights, broadcast rights, and all other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials which are used as part of the performance.) However, it’s equally the legal responsibility of the artist, and in some cases, the producer and promoter, to ensure that they have all of the required rights and licenses, including performance licenses from ASCAP, BMI and SESAC. Why? Because if an unlicensed song is performed at a venue, then the US Copyright Act allows all the parties involved in the performance—the artist as well as the venue/presenter, the producer, the promoter, and anyone else involved in the performance—to be sued by the publisher or copyright owner. Stealing a song is like robbing a bank: the entire gang is arrested; regardless of who broke open the safe, who drove the get away car, or who simply served as look out, they all participated in the robbery. I am familiar with many venues which do not want to be burdened with the perceived cost and difficulty of obtaining performance licenses (which, depending upon the specific circumstances, may be neither costly nor particularly difficult), refuse to do so, and insist on the artist obtaining the licenses. However, in my opinion, for reasons I have written about in earlier blogs, this is a foolish policy. In practice, it’s simple easier for venues and presenters to obtain ASCAP, BMI and SESAC licenses than the artist. The venue can purchase a blanket license from each organization that permits all of the music in their catalogs to be performed by any artist at the venue during the license period. These licenses can cover an entire year or just a specific festival or event, and are priced based on numerous factors, including number of performances, ticket prices, size of the venue, etc. With the blanket licenses in place, the artist simply needs to show up. If a venue or presenter prefers not to obtain such licenses, then the artist or performer can certainly do so themselves. However, if no one obtains the licenses, then everyone is liable. Quite simply, whether the venue/presenter requires the artist to obtain the performance licenses or the artist insists that the venue/presenter obtains the performance licenses, passing the responsibility on to another party will not relieve either party from ultimate responsibility if the other party fails to do so. In other words, there is no contract, release, or any other document which will protect you from liability should the necessary licenses not be obtained. This is why, among other reasons, if I operated a venue, I would much rather rely on myself to obtain the licenses than depend upon another party to do so. In your case, if the venue refuses to obtain the ASCAP, BMI or SESAC licenses, then you and your artist have two options: either the artist agrees to obtain the licenses or the artist refuses to perform. Electing to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits is not an option; that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble. _________________________________________________________________ “Law and Disorder: Performing Arts Division” will be taking a break between July 1 – July 14. Our next post will be on July 17. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed

Board Term Limits–The Kindest Cut of All?

Wednesday, May 15th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We are a small non-profit that runs a performing arts center. In up dating our by-laws, its been recommended that we establish term limits for our directors and officers, as well as a formal nominating committee. Do we really need such formalities? We’re very small and don’t have any other committees. Can’t the board itself select its own members and officers? And it seems a mistake to force directors to leave when they are willing to continue to serve on our board. What do you recommend to your clients?

While I am a strong advocate of fixed terms, I never recommend term limits for board members. Why? Because among the most challenging aspects of running a successful non-profit is finding and keeping healthy board members who, whether through wealth, work, or wisdom (or a rare combination of all three), contribute to the success and productivity of the organization. Once you are lucky enough to find then, the last thing you want to do is force them to leave! However, at the same time, you need to have a mechanism through which malignant board members can be removed. Such members, if left to metastasize, can quickly chase all the healthy ones away, burn out the staff, and poison the entire operation. Fixed terms without term limits provide you with the best of both worlds.

Let’s say, for example, that the by-laws provide that each board member serves a term of 2 years. At the end of each board member’s term, the nominating committee is required to review the board member and recommend either that the board member be invited to serve another term or be invited to exit. By having terms, but no term limits, there is no limit to how many terms a board member can serve, but there is also a fixed time after which every board member’s service can be reviewed. While you can pick any term length you want, I usually recommend no longer than 2 – 3 year terms for board membership. (Anything longer and you start losing the effectiveness of early detection and prevention!) There are also ways to stagger terms so that not everyone on the board is up for renewal at the same time.

Term limits for officers, on the other hand, can be more appropriate. Why? Because with no term limit, even a beloved president or board chair can quickly become a feared dictator that no one wants to cross, or, just as worse, a benevolent, but ineffective leader who spurns all attempts at growth or change. At the end of the president’s term, he or she can still serve on the board, but no longer gets to wield the mace of supreme authority. Also, in my experience, I have also found that the people you most want to serve as board president or chair will be those who do not want to serve more than a year whereas those you want to avoid are those who are looking for a life-time appointment.

As for whether or not you need to have a formal nominating committee, its a recommended practice to have the formality of a separate nominating committee—if not at first, then certainly as your board gets bigger. The nominating committee does not make the actual decisions, but, rather, makes recommendations to the board of whether or not to ask existing board members to renew their terms, as well as reviews and makes recommendations for the nomination of new board members. While the board is always able to accept or decline such recommendations, having a nominating committee allows a forum for such discussions to be “hashed out” other than in a full board meeting. This has the advantage of avoiding potentially awkward situations. First, imagine a scenario where a board member has nominated a “close friend” to serve on the board, but who may not be a good choice for the board. Having such a frank discussion is easier “in committee” than in the presence of the board member. Similarly, when reviewing the renewal of existing board members, its usually easier to have a more open and honest assessment, including key staff input, without having the entire board present. Like all committee work, its also a more efficient use of the board’s time to have committees make recommendations and reports rather than bog down the entire board with every decision. Lastly, a separate nominating committee can potentially prevent a small board from evolving into a dictatorship where only a few members dominate everything.

By-laws, like strategic plans and business plans, are not commandments fixed in stone, but, rather, should be approached as living, breathing, and malleable tools that provide structure as well as flexibility. When thinking of by-laws, you not only need to think of current operations, but creating mechanisms for growth. Even though your board may now be small, you want think big. Similarly, even though your board may currently be one big happy family, you want to think of the future when, like all families, everyone inevitably starts to get one everyone else’s nerves.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Arts Management, Law and Disorder: Performing Arts Division, Non-Profits, Venues | Comments Closed